Citation Nr: 1700154
Decision Date: 01/04/17 Archive Date: 01/13/17
DOCKET NO. 08-36 989A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina
THE ISSUES
1. Entitlement to an initial disability rating (or evaluation) for left knee patella femoral syndrome (hereinafter "left knee disability"), in excess of 10 percent from November 14, 2007, and in excess of 20 percent from February 18, 2014.
2. Entitlement to an initial disability rating (or evaluation) for right knee patella femoral syndrome (hereinafter "right knee disability"), in excess of 10 percent November 14, 2007, and in excess of 20 percent from February 18, 2014.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
E. Blowers, Associate Counsel
INTRODUCTION
The Veteran, who is the appellant in this case, had active service from February 1997 to March 2000.
This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which granted service connection for left and right knee patella femoral syndrome and assigned noncompensable
(0 percent) disability ratings effective November 14, 2007 (the day the claim for service connection was received by VA). In March 2008, the Veteran filed a notice of disagreement with the assigned disability ratings. During the pendency of this appeal, the Veteran moved and the current agency of original jurisdiction (AOJ) is the VA RO in Columbia, South Carolina. A September 2009 rating decision assigned 10 percent disability ratings for the left and right knee disabilities effective November 14, 2007. An April 2014 rating decision created "staged" initial ratings of 20 percent for the left and right knee disabilities from February 18, 2014 (the date of the February 2014 VA examination).
In September 2012 (prior to the April 2014 rating decision that granted the 20 percent disability ratings for the bilateral knee disabilities from February 18, 2014), the Board denied initial disability ratings in excess of 10 percent for the bilateral knee disabilities. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In May 2013, the Court vacated the Board's September 2012 decision pursuant to a Joint Motion for Remand (JMR). The parties to the JMR requested that the Court vacate the Board's decision on the basis of agreement that the Board had relied on an inadequate VA examination report to determine the current severity of the service-connected bilateral knee disabilities inasmuch as the September 2010 VA examiner did not address functional loss with regard to flare-ups. The parties further agreed that the Board should address evidence potentially relevant to the question of separate disability ratings under Diagnostic Code 5257 for instability associated with the service-connected bilateral knee disabilities.
In January 2014, the Board remanded the issues of higher disability ratings for left and right knee disabilities for additional development in light of the May 2013 JMR. Pursuant to the January 2014 Board remand instructions, the Veteran was contacted and asked to provide information as to all treatment of the service-connected bilateral knee disabilities, to which the Veteran did not respond, and additional VA treatment records were obtained and associated with the claims file. Further, the Veteran underwent a VA examination in February 2014, with addendum medical opinions obtained in March and April 2014, in order to assist in determining the current severity of the left and right knee disabilities. In a subsequent January 2015 decision, the Board found the February 2014 VA examination report, in combination with the March and April 2014 addendum opinions, thorough, adequate, and in compliance with the Board's remand instructions. As such, the Board went on to find that there had been substantial compliance with the prior Board remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders); D'Aries v. Peake, 22 Vet. App. 97 (2008). This finding was not disturbed in the April 2016 JMR discussed below.
The Board again denied higher initial disability ratings for the service-connected knee disabilities in a January 2015 decision. The Veteran also appealed this denial to the Court, and in April 2016, the Court adopted an April 2016 JMR remanding the issues on appeal for action consistent with the terms of the JMR. Specifically, in the JMR the parties agreed that the Board erred in failing to discuss the Veteran's lay statements concerning the effects of painful flare-ups on the knees, specifically, in the flexion of both knees. As the instant decision relies on the Veteran's lay statements to grant staged higher initial disability ratings of 30 percent from February 18, 2014 for painful limitation of flexion in both knees, the highest available schedular rating for limitation of flexion, the Board has met its responsibility to fully comply with the Court's order. See Forcier v. Nicholson,
19 Vet. App. 414 (2006) (holding that the duty to ensure compliance with a Court Order extends to the terms of the agreement struck by the parties that forms the basis of the JMR).
In the December 2008 substantive appeal (via VA Form 9), the Veteran requested a Board hearing to be held at the local RO in Columbia, South Carolina. The Veteran was afforded an informal conference before a decision review officer (DRO) in September 2010. In September 2010 and August 2012 statements, the Veteran indicated that the informal conference satisfied the request for a hearing in lieu of any formal hearing before the Board. In reviewing this case, the Board has not only reviewed the Veteran's physical claims file, but also the Veterans Benefits Management System (VBMS) and "Virtual VA" files so as to insure a total review of the evidence.
FINDINGS OF FACT
1. For the initial rating period from November 14, 2007 to February 17, 2014, the Veteran's bilateral knee disabilities were manifested by symptoms of painful motion, giving out, mild effusion, crepitus, flare-ups, interference with sitting, standing, and weight-bearing, and difficulty ascending and descending stairs that are productive of noncompensable limitation of motion, and use of knee braces and pain medication.
2. For the initial rating period from November 14, 2007 to February 17, 2014, the Veteran's bilateral knee disabilities did not manifest limitation of flexion to
30 degrees or limitation of extension to 10 degrees including on the basis of functional loss due to pain, weakness, fatigability, or incoordination; instability; ankylosis; dislocation of the semilunar cartilage with frequent episodes of joint "locking," pain, and effusion; malunion or non-union of the tibia and fibula; or genu recurvatum.
3. For the initial rating period from February 18, 2014, the Veteran's bilateral knee disabilities have been manifested by symptoms of painful motion, mild effusion, crepitus, joint locking, weakened movement, incoordination, flare-ups, interference with sitting, standing, and weight-bearing, subjective feelings of giving out and instability of station, and difficulty ascending and descending stairs that are productive of limitation of flexion to 15 degrees or less, and use of knee braces and pain medication.
4. For the initial rating period from February 18, 2014, the Veteran's bilateral knee disabilities have not been manifested by limitation of extension to 10 degrees including on the basis of functional loss due to pain, weakness, fatigability, or incoordination; instability; ankylosis; malunion or non-union of the tibia and fibula; or genu recurvatum.
CONCLUSIONS OF LAW
1. For the rating period from November 14, 2007 to February 17, 2014, the criteria for an initial disability rating in excess of 10 percent for left knee patella femoral syndrome have not been met or more nearly approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5003 (2016).
2. Resolving all reasonable doubt in favor of the Veteran, for the rating period from February 18, 2014, the criteria for a staged initial disability rating of 30 percent for left knee patella femoral syndrome have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2016).
3. The criteria for a separate compensable disability rating for left knee instability have not been met or more nearly approximated for the entire period on appeal. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5257 (2016).
4. For the rating period from November 14, 2007 to February 17, 2014, the criteria for an initial disability rating in excess of 10 percent for right knee patella femoral syndrome have not been met or more nearly approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5003 (2016).
5. Resolving all reasonable doubt in favor of the Veteran, for the rating period from February 18, 2014, the criteria for a staged initial disability rating of 30 percent for right knee patella femoral syndrome have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2016).
6. The criteria for a separate compensable disability rating for right knee instability have not been met or more nearly approximated for the entire period on appeal. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5257 (2016).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2016). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations.
See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004);
see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).
The Veteran was provided notice in December 2007, prior to the initial adjudication of the claims in February 2008. The Veteran was notified of the evidence not of record that was necessary to substantiate the claims, VA and the Veteran's respective duties for obtaining evidence, and VA's practices in assigning disability evaluations and effective dates. Further, as the issues come before the Board on appeal from the decision which also granted service connection, there can be no prejudice to the Veteran from any alleged failure to give adequate 38 U.S.C.A. § 5103(a) notice for the claims that were granted. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice arises from receipt of a notice of disagreement). Thus, the Board concludes that VA satisfied its duties to notify the Veteran.
VA satisfied its duty to assist the Veteran in the development of the claim. First, VA satisfied its duty to seek, and assist in the procurement of, relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including service treatment records, VA treatment records, private treatment records, DRO informal conference report, VA examination reports, and lay statements.
Second, VA satisfied its duty to obtain a medical opinion when required. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran was provided with VA examinations (the reports of which have been associated with the claims file) in February 2008, July 2009, September 2010, and February 2014. In connection with the February 2014 VA examination, addendum medical opinions were obtained in March and April 2014.
In an October 2013 written statement, the Veteran contended that she reported symptoms of instability at the September 2010 VA examination, but the VA examiner failed to include her statements in the examination report. The Board finds this contention inconsistent with and outweighed by the other evidence of record. Review of the September 2010 VA examination report reflects that the VA examiner specifically recorded the Veteran's subjective feelings of instability, but noted no instability upon physical examination.
The parties to the May 2013 Joint Motion for Remand requested that the Court vacate the Board's September 2012 decision on the basis of agreement that the Board had relied on an inadequate VA examination report to determine the current severity of the service-connected bilateral knee disabilities inasmuch as the September 2010 VA examiner did not address functional loss with regard to flare-ups. The parties agreed that the September 2010 VA examination report was inadequate for rating purposes because the VA examiner did not opine whether the Veteran's pain could limit functional ability during flare-ups in accordance with Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The parties to the Joint Motion for Remand agreed that the Board should remand the issues of higher initial disability ratings for the bilateral knee disabilities for a new VA examination that addressed the reported knee flare-ups and any resulting functional loss.
The Veteran underwent an additional VA examination in February 2014, with addendum medical opinions obtained in March and April 2014, in order to assist in determining the current severity of the left and right knee disabilities. Pursuant to the January 2013 Board remand instructions, the February 2014 VA examiner specifically noted and discussed the Veteran's reports of flare-ups associated with the bilateral knee disabilities. The VA examiner opined that, while balance and coordination were impacted during flare-ups, it was impossible to give an adequate response in terms of degrees of motion lost due to flare-ups without resort to mere speculation because the Veteran was not currently experiencing a flare-up of the service-connected knee disabilities. The VA examiner also specifically noted the Veteran's statements regarding subjective feelings of knee instability as well as the results from joint stability testing.
While medical examiners are responsible for providing a "full description of the effects of a particular disability upon the claimant's ordinary activity" (see 38 C.F.R. § 4.10 (2016)), it is the task of the adjudicator to "interpret reports of examination in the light of the whole recorded history, reconciling various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present." See 38 C.F.R. § 4.2 (2014); see also Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Board finds that the VA examinations, and associated addendum opinions, are thorough and adequate and, taken in connection with the other lay and medical evidence of record, provide a sound basis upon which to base a decision with regard to the Veteran's appeal. The VA examiners personally interviewed and examined the Veteran, including eliciting a history, and specifically addressed the symptoms, including as reported during flare-ups, listed in the relevant criteria in the potentially applicable diagnostic codes.
In the April 2016 JMR, the parties agreed that the Board erred in failing to assess the probative weight of the Veteran's statement that painful flare-ups of the knees resulted in an inability to flex the knee. In the instant decision, the Board finds the Veteran's advancement credible and uses the statement to grant a staged higher initial disability rating of 30 percent from February 18, 2014 for painful limitation of flexion, the highest available schedular rating for limitation of flexion. As such, remand is not necessary for a new VA knee examination.
The Veteran was offered the opportunity to testify at a Board hearing, but subsequently withdrew the hearing request. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159.
Initial Ratings for Left and Right Knee Disabilities
Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4 (2016). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1 (2016). Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability ratings shall be applied, the higher rating is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. When, after careful consideration of the evidence, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3.
Where, as here, the question for consideration is the propriety of the initial ratings assigned, evaluation of the all evidence and consideration of the appropriateness of staged ratings is required whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board has considered, and maintained, the assigned "staged" ratings of 10 percent ratings for the period from November 14, 2007 to February 18, 2014, and 20 percent ratings from February 18, 2014 for the left and right knee disabilities.
Except as otherwise provided in the rating schedule, all disabilities, including those arising from a single disease entity, are to be rated separately, and then all ratings are to be combined pursuant to 38 C.F.R. § 4.25 (2016). Esteban v. Brown, 6 Vet. App. 259, 261 (1994). However, the Court has interpreted 38 U.S.C.A. § 1155 as implicitly containing the concept that the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment of earning capacity and would constitute pyramiding of disabilities, which is cautioned against in 38 C.F.R. § 4.14 (2016). In Esteban, the Court held that the critical element was that none of the symptomatology for any of the conditions was duplicative of or overlapping with the symptomatology of the other conditions.
The Veteran is in receipt of 10 percent disability ratings for the period from November 14, 2007 to February 17, 2014, and 20 percent disability ratings from February 18, 2014 for the service-connected left and right knee disabilities, respectively, under 38 C.F.R. § 4.71.a, Diagnostic Codes 5010-5003 and 5260. Diagnostic Code 5010 represents arthritis due to trauma, substantiated by x-ray findings, which in turn is to be rated under Diagnostic Code 5003 as degenerative arthritis (hypertrophic or osteoarthritis). 38 C.F.R. § 4.71a. Degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent rating is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. Id., Diagnostic Code 5003.
Notes (1) and (2) under Diagnostic Code 5003 provides the following: Note
(1) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note
(2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. Id., Diagnostic Code 5003, Notes (1) and (2).
The Diagnostic Codes that rate on the basis of limitation of motion of the knee are Diagnostic Codes 5260 and 5261. Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II.
Under Diagnostic Code 5260, a noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. 38 C.F.R. § 4.71a.
Under Diagnostic Code 5261, a noncompensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees; and a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees. Id.
For disabilities of the musculoskeletal system, the Board also considers whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Although pain may cause a functional loss, pain itself does not constitute functional loss. Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. See Mitchell, 25 Vet. App. 32.
Throughout the course of this appeal, the Veteran has contended that the service-connected left and right knee disabilities have been manifested by more severe symptoms than that contemplated by the 10 and 20 percent "staged" disability ratings assigned. In a March 2008 notice of disagreement, the Veteran asserted entitlement to higher disability ratings because she experiences constant bilateral knee pain and can no longer do many activities. In the December 2008 substantive appeal (on a VA Form 9) and December 2009 written statement, the Veteran asserted that knee pain had worsened. See also June 2010 written statement (Veteran reported limping due to knee pain).
In a July 2012 written statement, the representative indicated that the Veteran has painful flare-ups lasting one to two weeks every month that are largely incapacitating and, based on symptoms, contended that the Veteran merited a 20 percent disability rating under Diagnostic Code 5258 (dislocation of the semilunar cartilage with frequent episodes of joint "locking," pain, and effusion). The representative contended that the Veteran's bilateral knee flexion, extension, and functional load bearing capability are severely restricted.
From November 14, 2007 to February 17, 2014
As discussed in detail below, for the period from November 14, 2007 to February 17, 2014, the Board finds that the criteria for initial disability ratings in excess of 10 percent for the service-connected left and right knee disabilities have not been met or more nearly approximated. After a review of all the evidence, lay and medical, the Board finds that, for the initial rating period from November 14, 2007 to February 17, 2014, the Veteran's bilateral knee disabilities were manifested by symptoms of painful motion, giving out, mild effusion, crepitus, flare-ups, interference with sitting, standing, and weight-bearing, and difficulty ascending and descending stairs that are productive of noncompensable limitation of motion, and use of knee braces and pain medication.
The VA treatment records and service treatment records of record, as well as the Veteran's own statements through the course of this appeal, reflect that the Veteran has consistently reported bilateral knee pain that is worsened by prolonged walking, sitting, and standing and ascending and descending stairs. In the March 2008 notice of disagreement, the Veteran contended that exercise or even walking a short distance caused her knees to swell or lock up and that the knee pain is so excruciating that she has trouble sleeping. In the December 2008 substantive appeal (VA Form 9), the Veteran reported worsening knee pain and that the knee will "give out" when walking. The Veteran reported experiencing flare-ups and swelling in both knees and being awakened at night due to knee pain. The Veteran reported that she is constantly taking pain medication and limited in her ability to exercise and sit at a desk due to knee pain.
In a January 2009 written statement, the Veteran's spouse reported that the Veteran cannot stand for long periods of time, has occasional trouble getting out of bed when her knees swell, cannot run, and experiences difficulty climbing stairs. In a June 2010 written statement, the Veteran reported constant limping due to extreme knee pain and difficulty sitting for a prolonged period of time. The Veteran reported symptoms of joint locking, instability, and that bending, kneeling, squatting, and ascending and descending stairs cause her knees to flare-up.
An October 2007 private treatment record noted that the Veteran reported constant aching, clicking, and popping in both knees that is worse with bending, exercising, standing, walking, and ascending and descending steps, and is relieved by medication, rest, and ice. The private treatment record notes that physical examination of the left knee revealed no effusion, pain with pressure over the patellofemoral joint, pain with flexion and extension, no valgus/varus instability, negative Lachman's test, positive McMurray's test, pain along the medial joint line with clicking, and pain with squatting. Physical examination of the right knee revealed mild effusion, crepitus with range of motion, pain with palpation over the patellofemoral joint, no valgus/varus instability, negative Lachman's test, positive McMurray's test, and pain along the medial joint line with clicking. There were no specific range of motion findings noted as to either knee.
A subsequent October 2007 private treatment record noted that the Veteran reported worsening knee pain that awakens her at night and prevents her from ascending and descending stairs. Upon physical examination, crepitus with range of motion, tenderness to palpation along the joint lines, mild effusions, and pain with pressure over the patella of both knees was noted. No gross instability was noted. An October 2007 private MRI report notes impressions of patella alta, but no evidence of meniscal tears or ligamentous injury.
A November 2007 private treatment record noted that the Veteran reported bilateral knee pain. The private treatment record noted that, upon physical examination, some crepitus with range of motion and tenderness along the joint lines was noted in both knees. No gross instability of the knees was noted. The private treatment record noted an impression of patella alta of the bilateral knees with patella femoral instability and that a patellofemoral brace for the right knee and pain medication were prescribed.
At the February 2008 VA examination, the Veteran reported chronic bilateral knee pain with the right worse than the left. The Veteran denied experiencing spontaneous flare-ups of knee pain. The Veteran reported that the knee pain worsened upon weight-bearing, walking more than three to four blocks, and ascending and descending stairs. The Veteran reported no knee pain at rest and not missing any time for work due to knee pain. The VA examination report notes that the Veteran did not wear knee braces.
Upon physical examination at the February 2008 VA examination, the Veteran's gait was noted as normal and no laxity was demonstrated. Range of motion testing reflected right and left knee flexion to 120 degrees and extension to 0 degrees that was not additionally limited by pain, fatigue, weakness, or lack of endurance. No additional limitation of motion was noted upon repetitive testing.
At the July 2009 VA examination, the Veteran reported intermittent bilateral knee pain aggravated by walking, standing, and using stairs, swelling in both knees, instability in the left knee, and using a right knee brace. The Veteran did not report any distinct flare-ups. Upon physical examination, range of motion testing reflected bilateral knee flexion to 110 degrees and extension to 0 degrees with end-of-range pain and no additional limitation of motion due to pain or fatigue following repetitive testing. The VA examiner noted no ligamentous laxity in any direction in either knee. The VA examiner noted bilateral tenderness with patellar compression, mild crepitus in the right knee, and no crepitus in the left knee.
An October 2009 VA treatment record notes that the Veteran reported knee pain, an inability to stand or walk for a prolonged period of time, locking and swelling in the right knee, and some unsteadiness. October 2009 and March 2010 VA treatment records, upon physical examination, noted full range of motion and tenderness on palpation of the medial supracondylar area.
At the September 2010 VA examination, the Veteran reported increasing pain, locking episodes, and swelling particularly in the left knee. The Veteran reported subjective symptoms of giving way, instability, pain, and stiffness in both knees. The Veteran reported locking episodes several times per week and severe flare-ups every one to two months lasting for one to two weeks that are precipitated by increased activity and alleviated with rest and medications. The Veteran reported avoiding being on her feet as much as possible. The VA examination report notes that the Veteran is able to stand up to one hour, walk more than one fourth but less that one mile, and occasionally uses a knee brace.
Upon physical examination at the September 2010 VA examination, the Veteran was noted to have an antalgic gait. The VA examiner noted bilateral crepitus, tenderness, and abnormal tracking and subpatellar tenderness of the patellar. The VA examiner noted no instability, grinding, clicking, snapping, or meniscus abnormalities. Upon physical examination, range of motion testing reflected left knee flexion to 130 degrees and extension to 0 degrees with objective evidence of pain with active motion. Range of motion testing revealed right knee flexion to 135 degrees and extension to 0 degrees with objective evidence of pain with active motion. No additional limitation of motion was noted upon repetitive testing. The VA examiner noted significant effects on the Veteran's occupation as she has to take frequent breaks because prolonged sitting bothers her knees. The VA examiner noted moderate effect on chores, exercise, and recreation, mild effect on shopping, traveling, and driving, and that the bilateral knee disabilities prevent sports.
After a review of all the evidence, both lay and medical, for the initial rating period from November 14, 2007 to February 17, 2014, the Board finds that the criteria for initial disability ratings in excess of 10 percent for the service-connected left and right knee disabilities have not been met or more nearly approximated. 38 C.F.R. §§ 4.3, 4.7, 4.71a. A rating in excess of 10 percent (20 percent) under Diagnostic Code 5010, which in turn would be rated under Diagnostic Codes 5260 and 5261 for limitation of motion, requires flexion limited to 30 degrees or less or extension limited to 15 degrees or more.
For the initial rating period from November 14, 2007 to February 17, 2014, the limitation of motion of the right or left knee did not more nearly approximate extension limited to 15 degrees or more, or flexion limited to 30 degrees or less, as needed for a 20 percent rating, even with consideration of the additional limitation due to pain, giving out, mild effusion, crepitus, flare-ups, interference with sitting, standing, and weight-bearing, and difficulty ascending and descending stairs. The evidence also does not show compensable limitation of motion of extension (10 degrees) and limitation of motion of flexion (45 degrees) to warrant separate compensable ratings for both limitation of extension and limitation of flexion for the left or right knee including on basis of functional loss due to pain, weakness, fatigability, or incoordination. See VAOPGCPREC 09-04 (separate ratings may be awarded for compensable limitation of flexion and limitation of extension of the same knee joint); see also Deluca, supra. Rather, the evidence of record shows that the Veteran, at worst, had bilateral knee flexion to 110 degrees with end-of-range pain and extension to 0 degrees at the July 2009 VA examination; therefore, flexion is limited at 110 degrees, with does not approximate limitation to 45 degrees as needed for a higher (20 percent) rating. See VAOPGCPREC 9-98 (interpreting that painful motion is considered limited motion at the point that the pain actually sets in). Therefore, higher disability ratings in excess of 10 percent are not warranted under Diagnostic Codes 5260 or 5261 for limitation of flexion and extension of the left or right knee. 38 C.F.R. § 4.71a.
The Board has considered whether higher disability ratings for the left or right knee are warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See also DeLuca. Here, there is no question that the Veteran's left and right knee disabilities have caused giving out, mild effusion, crepitus, and flare-ups, which have restricted overall motion. At the February 2008 VA examination, the Veteran denied experiencing spontaneous flare-ups of knee pain. In the December 2008 substantive appeal (VA Form 9), the Veteran endorsed experiencing flare-ups, but at the July 2009 VA examination, the Veteran again did not report any distinct flare-ups. At the September 2010 VA examination report, the Veteran reported severe flare-ups every one to two months lasting for one to two weeks that are precipitated by increased activity and alleviated with rest and medications
The Veteran has consistently, in statements to the Board and statements made for the purpose of treatment, reported chronic bilateral knee pain, crepitus, swelling, giving way, difficulty ascending and descending stairs, difficulty with prolonged walking, sitting, and standing, and flare-ups of knee pain; however, as noted above, even taking into account additional functional limitation due to pain, the VA examination reports and VA treatment records indicate ranges of motion for the initial rating period from November 14, 2007 to February 17, 2014 that do not more nearly approximate the 20 percent criteria. At the July 2009 VA examination, range of motion testing reflected bilateral knee flexion was limited to 110 degrees and extension to 0 degrees with pain at the end of the range of motion. See VAOPGCPREC 9-98 (interpreting that painful motion is considered limited motion at the point that the pain actually sets in). Even considering the Veteran's lay statements concerning painful flare-ups during this period of time, the evidence does not reflect that the flare-ups were so severe during this period of time that the bilateral knee motion would be so limited as to reflect limitation of motion of extension to 10 degrees and/or limitation of motion of flexion to 45 degrees. Based on the above, the degree of functional impairment does not warrant higher ratings based on limitation of motion for either the left or right knee disabilities for the rating period from November 14, 2007 to February 17, 2014.
From February 18, 2014
As discussed in detail below, for the period from February 18, 2014, the Board finds that the criteria for initial disability ratings of 30 percent for the service-connected left and right knee disabilities are met for the period from February 18, 2014. After a review of all the evidence, lay and medical, the Board finds that, for the initial rating period from February 18, 2014, the Veteran's bilateral knee disabilities have been manifested by symptoms of painful motion, mild effusion, crepitus, joint locking, weakened movement, incoordination, flare-ups, interference with sitting, standing, and weight-bearing, subjective feelings of giving out and instability of station, and difficulty ascending and descending stairs that are productive of limitation of flexion to 15 degrees or less, and use of knee braces and pain medication.
The VA treatment records and service treatment records, as well as the Veteran's own statements through the course of this appeal, reflect that the Veteran has consistently reported bilateral knee pain that is worsened by prolonged walking, sitting, and standing and ascending and descending stairs. In an October 2013 written statement, the Veteran contended that she continues to have painful flare-ups, instability, clicking, snapping, and grinding in both knees. The Veteran reported that the swelling and pain associated with the bilateral knee disabilities has resulted in lost time from work, loss of sleep, and interference with daily activities to include house work. The Veteran reported that she cannot stand or walk for long periods of time due to the swelling and resultant instability.
At the February 2014 VA examination, the Veteran reported that bilateral knee pain had worsened, her knees "give out" at times, she cannot stand for extended periods of time, riding, biking, and walking aggravate her knees, and her knees will lock up for no particular reason. The Veteran reported flare-ups once to twice per week that last all day to all week. The Veteran reported that during flare-ups she was unable to bend her knees and that she has to sit down and elevate her legs straight. The VA examiner noted that balance and coordination are impacted during flare-ups, but that there was no way to give an adequate response in terms of degrees of motion lost during flare-ups without resort to speculation because the Veteran was not currently experiencing a flare-up.
Upon physical examination at the February 2014 VA examination, range of motion testing revealed bilateral knee flexion to 30 degrees with objective evidence of painful motion at 25 degrees and extension to 0 degrees with no objective evidence of painful motion. No additional limitation of motion was noted upon repetitive testing. The VA examiner noted functional impairment for both knees of less movement than normal, weakened movement, incoordination, swelling, instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. Both knees were noted to be tender or painful to palpation. Joint stability tests were normal bilaterally. The VA examiner noted no meniscus abnormalities associated with either knee. The VA examination report notes that the Veteran constantly uses knee braces and is unable to work on her feet for extended periods of time due to the bilateral knee disabilities.
The Board has given serious consideration to the Veteran's contention that flare-ups of pain result in an inability to bend the right and/or left knees. Considering the evidence reflects that as of February 18, 2014 the Veteran had painful limitation of flexion to 25 degrees when not having painful flare-ups in either knee, and considering all the other evidence of record, the Board finds it credible that when a painful flare-up occurs the Veteran's right and left knee flexion are reduced to more nearly approximate15 degrees or less so as to warrant a 30 percent disability rating under Diagnostic Code 5250. 38 C.F.R. §§ 4.3, 4.7.
After a review of all the evidence, both lay and medical, for the staged initial rating period from February 18, 2014, the Board finds that the criteria for initial disability ratings of 30 percent for painful limitation of flexion, the maximum schedular rating for limitation of flexion, for the service-connected left and right knee disabilities have been met. 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5260. A rating of
30 percent under Diagnostic Code 5260 requires flexion limited to 15 degrees or less, which, for the reasons discussed above, the Board has found in both knees in the instant matter beginning February 18, 2014, the date of the last VA knee examination. See 38 C.F.R. § 3.400(o) (2016) (date of increase is date of receipt of claim or date entitlement arose, whichever is later).
Other Knee Diagnostic Codes
The Board also finds that no other higher or separate rating is warranted under any of the other diagnostic codes pertaining to the knee for any part of the initial rating period. Ankylosis is "[s]tiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint." Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (quoting from Stedman's Medical Dictionary 87 (25th ed. 1990)). As
there is no lay or medical evidence of ankylosis, the Board finds that Diagnostic Code 5256 does not apply. There is no evidence that the Veteran underwent a knee replacement of either knee joint; therefore, Diagnostic Code 5055 is inapplicable. 38 C.F.R. § 4.71a.
As touched upon above, in VAOPGCPREC 9-2004, the VA General Counsel interpreted that when considering Diagnostic Codes 5260 and 5261 together with
38 C.F.R. § 4.71, a veteran may receive a rating for limitation in flexion only, limitation of extension only, or, if the 10 percent criteria are met for both limitations of flexion and extension, separate ratings for limitations in both flexion and extension under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension). Also as discussed above, at no time during the relevant rating period on appeal has the Veteran ever had limitation of extension of either knee to 10 degrees or more, even when considering additional loss of range of motion due to due to weakness, fatigability, incoordination, or pain (including painful flare-ups) on movement of a joint under 38 C.F.R. §§ 4.40, 4.45, and 4.59. As such, a separate compensable rating (or a disability rating in excess of 30 percent) is not warranted under Diagnostic Code 5261 for painful limitation of extension of either the right or left knees. Id.
The Board also finds that a separate disability rating under Diagnostic Code 5257 for recurrent subluxation or lateral instability of the left or right knee is not warranted for any part of the initial rating period. In the December 2008 substantive appeal (VA Form 9), the Veteran reported that her knees will "give out" when walking. At the July 2009 VA examination, the Veteran reported instability in the left knee. An October 2009 VA treatment record notes that the Veteran reported some unsteadiness in the knees. In a June 2010 written statement, the Veteran reported experiencing symptoms of joint instability. In an October 2013 written statement, the Veteran reported that she cannot stand or walk for long periods of time due to the swelling and resultant instability associated with the bilateral knee disabilities. At the February 2014 VA examination, the Veteran reported that her knees will "give out" at times.
After a review of the lay and medical evidence, the Board finds that the weight of the evidence is against finding instability of either knee during any part of the rating period. The October and November 2007 private treatment records note no gross instability of either knee. Upon physical examination at the February 2008, July 2009, and September 2010 VA examination, no laxity or instability was demonstrated in either knee. At the February 2014 VA examination, joint stability tests were normal bilaterally. Despite, as detailed above, the Veteran's reports of bilateral knee instability, she objectively demonstrated a stable knee at the February 2008, July 2009, September 2010, and February 2014 VA examinations. At the February 2014 VA examination, specific clinical testing was conducted and reflected no anterior, posterior, or medial-lateral instability of either knee joint. The Board finds that the specific clinical testing performed at the VA examinations that reflected no instability to be of greater probative value than the Veteran's general assertions of bilateral knee instability.
Further, the Board notes that "giving way" and "instability of station" may be a different symptom than instability and more closely resembles weakness in the knee rather than instability. See Dorland's Illustrated Medical Dictionary 958 (31st ed. 2007) (defining instability as a "lack of steadiness or stability" and functional instability as the "inability of a joint to maintain support during use"). In Esteban, the Court held that the critical element was that none of the symptomatology for any of the conditions was duplicative of or overlapping with the symptomatology of the other conditions. See also 38 C.F.R. § 4.14. To rate the symptoms of knee weakness and giving way as symptoms of both arthritis (causing limitation of motion) and as instability (analogizing the weakness and giving way to instability) would result in rating the same symptoms under different diagnostic codes and compensating the Veteran twice for the same symptoms. As such, the Board finds that a separate rating for instability of the left or right knee under Diagnostic Code 5257 is not warranted for any part of the appeal period. 38 C.F.R. § 4.71a.
Diagnostic Code 5258 addresses dislocation of semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. While, as noted above, the Veteran's bilateral knee disabilities have been manifested by painful motion, joint "locking," and swelling (effusion) into the joint, the evidence of record does not support a finding that the Veteran had dislocation of the semilunar cartilage of either knee. Rather, the October 2007 private MRI report notes no evidence of meniscal tears or ligamentous injury. The September 2010 and February 2014 VA examiners noted no meniscus abnormalities associated with either knee.
Further, the Board finds that the functional impairment caused by the pain on movement, locking, and swelling associated with the bilateral knee disabilities is contemplated by the 10 and 20 percent "staged" ratings assigned under Diagnostic Codes 5010-5003 and 5260. See also DeLuca at 204-07; 38 C.F.R. §§ 4.40, 4.45, 4.59. Joint "locking" is the sudden loss of ability to extend the knee, which is usually painful. See Firestein, Kelley's Textbook of Rheumatology 571 (9th ed. 2012). Diagnostic Codes 5010-5003 and 5260 specifically provide disability ratings on the basis on limitation of motion, including limitation of motion caused by pain; therefore, the joint "locking" manifestations are contemplated by rating criteria under which the 10 and 20 percent ratings are currently assigned. 38 C.F.R. § 4.71a. As the weight of the evidence reflects that the Veteran's bilateral knee disabilities do not involve meniscal tears or dislocation of the semilunar cartilage, and the rating criteria under Diagnostic Codes 5003 and 5260 encompass the Veteran's other knee symptomatology of painful motion, swelling, and joint "locking," the Board finds that a separate or alternate rating under Diagnostic Code 5258 is not warranted for any part of the appeal period.
Further, the Board also finds that a separate disability rating under Diagnostic Code 5259 is not warranted in the present case with respect to either knee. Review of the evidence of record does not reflect that the Veteran underwent a meniscectomy or that the left or right knee disabilities have been otherwise manifested by removal of the semilunar cartilage; therefore, the Board finds that Diagnostic Code 5259 does not apply.
Diagnostic Code 5262 does not apply, as there is no evidence of impairment of the tibia or fibula of either knee. Diagnostic Code 5263 assigns a single 10 percent disability rating for genu recurvatum that is acquired, traumatic, and with weakness and insecurity in weight-bearing objectively demonstrated. As the evidence of record does not reflect that the Veteran has genu recuravtum of either knee, Diagnostic Code 5263 does not apply. Id.
Finally, for the entire initial rating period, there is no evidence of record of any scars associated with the left or right knee disabilities nor has the Veteran asserted otherwise; therefore, the Board finds that the Veteran is not entitled to a separate compensable rating under Diagnostic Codes 7800 through 7805 for the bilateral knee disabilities. 38 C.F.R. § 4.118 (2016).
Extraschedular Consideration
The Board has considered whether referral for an extraschedular rating would have been warranted for the left or right knee disabilities for any part of the rating period. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2016). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular disability ratings for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008).
Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."
38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id.
The Board finds that all the symptomatology and impairment caused by the Veteran's bilateral knee disabilities is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The Veteran's bilateral knee disabilities have been manifested by symptoms of painful motion, mild effusion, crepitus, joint locking, weakened movement, incoordination, subjective feelings of giving out and instability of station, painful flare-ups, interference with sitting, standing, and weight-bearing, and difficulty ascending and descending stairs and limitation of flexion. The schedular rating criteria specifically provides ratings painful arthritis (Diagnostic Code 5003, 38 C.F.R. § 4.59) and limitation of motion (Diagnostic Codes 5260 and 5261), including motion limited to orthopedic factors such as pain, incoordination, weakness, and instability of station (38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca), which are incorporated into the schedular rating criteria.
The Veteran's crepitus, interference with sitting, standing, and weight-bearing, and difficulty ascending and descending stairs are specifically contemplated by the rating criteria for limitation of motion because arthritis contemplates painful limitation of motion as caused by crepitus (grating, crackling, or popping sensations in the knee) and which inherently creates difficulty with sitting, standing, weight-bearing, and ascending and descending stairs. See also 38 C.F.R. § 4.45 (interference with sitting, standing, and weight-bearing are related considerations to painful motion). In this case, comparing the Veteran's disability level and symptomatology of the left and right knee disabilities to the rating schedule, the degree of disability throughout the entire period under consideration is contemplated by the rating schedule and the assigned ratings are, therefore, adequate.
According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities.
In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. In this case, there is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria.
The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on daily life. In the absence of exceptional factors associated with the left or right knee disabilities, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is part of a rating claim when unemployability is expressly raised by a veteran or reasonably raised by the record during the rating appeal. At the July 2009 and September 2010 VA examinations, the Veteran reported working as a secretary and part-time prison guard. In the December 2008 substantive appeal (VA Form 9), the Veteran reported working as a secretary and correctional officer. In the October 2013 written statement, the Veteran reported that she is currently working. No new evidence has been received by VA indicating that the Veteran is no longer employed. While the Veteran has made statements that she has missed some time from work due to bilateral knee pain (see October 2013 written statement), the Veteran has not contended that she is unemployed because of her service-connected disabilities, and the other evidence of record does not so suggest; thus, the Board finds that Rice is inapplicable in this case because neither the Veteran nor the evidence suggests unemployability due to the service-connected disabilities.
ORDER
A higher initial disability rating for left knee patella femoral syndrome in excess of 10 percent for the period from November 14, 2007 to February 17, 2014 is denied; a higher initial disability rating of 30 percent from February 18, 2014 is granted.
A higher initial disability rating for right knee patella femoral syndrome in excess of 10 percent for the period from November 14, 2007 to February 17, 2014 is denied; a higher initial disability rating of 30 percent from February 18, 2014 is granted.
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J. PARKER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs